Divorcing While Living Under the Same Roof in Ontario

Many separated couples cannot afford two homes. Rent, a mortgage, children and work can all make it unrealistic for one person to move out, even when the marriage is clearly over.

This article explains what the Divorce Act says about separation, what it leaves open when spouses share a home, and the practical issues that come up. It is general information, and whether your situation counts is a question to confirm with a lawyer.

What the one-year rule says

The only ground for divorce is breakdown of the marriage. That is established where the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is decided. An Ontario court can hear a divorce only if at least one spouse has been habitually resident in the province for at least one year immediately before the proceeding starts.

The Act also says spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other.

Does sharing a home count?

The section does not itself say whether spouses living under one roof qualify. How this applies to spouses sharing a home depends on your situation, so it is worth confirming with a lawyer. Because the statute leaves this open, it is wise to get advice on how a court is likely to view your arrangements before you rely on them.

How your day-to-day arrangements would be viewed depends on your situation, so it is worth confirming with a lawyer.

This table describes general practical considerations, not a legal test. Which of these matter most depends on the facts.

What if you try again for a while?

Reconciliation attempts can happen in the same home. The one-year period is not interrupted or terminated if the spouses resumed cohabitation for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose. Anything beyond that, or cohabitation that was not mainly aimed at reconciling, can raise questions about the clock, so keep track of dates and confirm the effect with a lawyer.

In a divorce case, the court also has a duty to satisfy itself that there is no possibility of reconciliation, unless the circumstances make that inappropriate.

Living together while money, children and the home are unsettled

Sharing a home does not pause your legal issues. If you have children, spouses must, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding. Parenting decisions focus on the child's interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. Before granting a divorce, the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage.

Property is measured at the separation date. Net family property is the value of property at separation, minus debts and excluded property, less the same net value at the date of marriage, and the spouse with the larger amount pays half the difference. Because the separation date drives the calculation, how you date your separation matters beyond the divorce itself. If you and your spouse disagree about that date, get advice.

If you need orders while still sharing a home, parties commonly ask for temporary orders on child or spousal support, parenting schedules, or who lives in the family home. A married person can ask the court to let them stay in the family home and require the spouse to leave, even if the spouse owns it. The judge considers past violence, whether there is another suitable place to live, the children's interests, and both parties' finances.

• Spousal support looks at each spouse's means, needs and circumstances, including the length of the relationship and what each person did during it.
• A spouse can register a designation of a matrimonial home on property owned by the other spouse or by both spouses.
• A temporary order generally requires a case conference first, unless urgency or hardship applies.

What to do next

If you are staying put for financial reasons, a bit of structure now can save disputes later.

• Record the date you consider the relationship ended, and keep messages or notes that show it.
• Keep a simple log of any attempt to reconcile, with start and end dates, so you can compare it with the 90-day rule.
• Set house rules for money, chores and children, ideally in writing.
• Gather financial records, since you will likely need to exchange them. Form 13 and Form 13.1 financial statements must be sworn or affirmed before a lawyer or commissioner of oaths, and a courthouse clerk can commission them if you have no lawyer.
• If safety becomes a concern, contact 911 or the Assaulted Women's Helpline and review the province's safety planning steps.
• Ask a family lawyer whether your arrangement is likely to count as separation and how to date it.

Frequently asked questions